KAMUBEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner's case is that one Dhaniben, daughter of Haribhai Lalbhai and wife of Dalpatbhai Durlabhbhai was holding agricultural lands bearing Survey Nos. 90/T-1, 90/T-2 and 494 and House No. 384. On the portion of the land bearing Survey No. 494, constructions were there in the nature of stables and Dargah, since 1974 and on the portion thereof, the agricultural operations were carried on and the grass was grown. On the land bearing Survey Nos. 90/T-1 and 90/T-2, the agricultural operations were carried on prior to 1975-76 and thereafter that there was no master plan prepared by any Competent Authority under any law or otherwise in respect of the agricultural lands bearing Survey Nos. 90/T-1 and 90/T-2 and 494. It is the further say of the petitioner that Dhaniben was in fact, not required to file any declaration in Form No. 1 under S.6 of the Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' for short) because according to the learned Counsel for the petitioner, the land held by her was not a vacant land within the meaning of the provisions of the said Act. However, she filed the declaration in Form No. 1 about her holding of land. The Competent Authority and Additional Collector, Surat, while processing the Form, exercised the suo motu powers under S.20 of the said Act and granted exemption to the land bearing Survey No. 494 from the applicability of the said Act, and so far as the lands bearing Survey Nos. 90/T-1 and 90/T-2 are concerned, it was held that these lands were placed in the agricultural zone in the master plan, i.e., the development plan prepared by the Surat Urban Development Authority under the provisions of the Gujarat Town Planning and Urban Development Act, and there was no need to grant any exemption. House No. 384 was constructed properly and on the land bearing Survey No. 494, there were seven stables and one Dargah. Dhaniben, therefore, moved an application before the Revenue Authority of the Government of Gujarat for withdrawal of the exemption granted to the land bearing Survey No. 494 under S.20 of the said Act as the same was redundant, according to the petitioner, because the provisions of the said Act were not applicable. The Revenue Department of the Government of Gujarat withdrew the exemption by its order dated 12th October 1990 and thereafter the proceeding pertaining to Form No. 1 under S.6 was resumed by the Competent Authority in connection with the land bearing Survey No. 494 and the residential house. Dhaniben expired on 17th November 1983 and her husband Dalpatbhai Durlabhbhai was her legal heir for the properties of deceased Dhaniben. Accordingly, Dhaniben's husband Dalpatbhai Durlabhbhai participated in the proceedings before the Competent Authority. The Competent Authority came to the conclusion that there was no excess holding with deceased Dhaniben and accordingly the notice issued under S.8(4) of the said Act was required to be withdrawn and the proceedings under S.6(1) of the said Act were preferred. The Competent Authority, therefore, passed the order on 5th November 1990 filing the Form and withdrawing the notice. According to the petitioner, the said Survey No. 494 was included in the draft Town Planning Scheme, Surat and the predecessor of the petitioner was informed by the Town Planning Officer by letter dated 29th December 1993 that a tentative reconstitution Plan was prepared and the land bearing Survey No. 494 was given original plot No. 34 and in lieu of the said original plot No. 34, final Plot No. 75 was proposed to be allotted. However, the order dated 5th November 1990 as referred to above, was made a subject-matter of revision by issuing notice dated 19th April 1993 after a period of about three years and a notice calling upon the heir of deceased Dhaniben was issued to show cause as to why the land admeasuring 3,984.39 sq.mtrs. should not be declared as an excess vacant land. After the death of Dhaniben, Dalpatbhai married the petitioner and Dalpatbhai gave a detailed reply to the aforesaid notice dated 19th April 1993 on 8th February 1994 contending therein that there were seven stables in all admeasuring 1,700 sq. mtrs. and there was a Dargah on the said land bearing Survey No. 494 from the very beginning and that there was reduction of 880 sq. mtrs. in the total area of the said land bearing Survey No. 494 comprising the final plot No. 75 as was proposed to be reconstituted under the Town Planning Scheme No. 18 and that the other lands were agricultural lands and thus, deceased Dhaniben did not hold any excess land beyond the ceiling limit on the date of the coming into operation of the said Act. The respondent No. 1 in exercise of the revisional powers under S.34, passed the order on 23rd May 1994 holding that 3,780 sq. mtrs. of land was in excess. After the passing of the aforesaid order on 23rd May 1994 by the Revenue Department, Government of Gujarat, Dalpatbhai Durlabhbhai also expired and now, the petitioner, claiming to be the legal heir of deceased Dalpatbhai, has filed the present petition.

(2.) The learned Counsel for the petitioner firstly argued that the land on which the constructions were raised in the form of stables and Dargah could not have been taken into consideration, but an order Annexure-H dated 23rd May 1994 shows that the constructions were not raised prior to the coming into force of the Act and, therefore, the land in excess was rightly determined. A reference has been made to the entries in Form No. 1 which was filed under S.6 and in this Form, in the column relating to construction, no construction has been shown.

(3.) . Faced with this situation, the petitioner argued that the land in question was the agricultural land and therefore, the same was exempted beyond the scope of the provisions of the Act. The learned Counsel made a reference to the document Annexure-C, but the entries in this document do not show that the land was being actually used for agricultural purposes inasmuch as the crop is only wild grass and, therefore, this argument of the learned Counsel for the petitioner cannot be accepted in view of the contents of the document Annexure-C on which the petitioner herself has placed reliance. An amendment was sought by the learned Counsel for the petitioner on 7th March 1995 itself and the same was also granted. Through this amendment, the petitioner sought to raise the following ground :